1. It was suggested by Dr. Katju who appeared on behalf of the appellant that the appeal may be referred to a Bench of two Judges. I am not in agreement with such a request. If a matter is of some difficulty for decision it does not necessarily follow that it should be referred to a Bench of two Judges. The decision of a single Judge, if so permitted, is open to appeal to such a Bench and no reason is apparent why the ordinary rule of procedure should not be followed in every case.
2. The dispute in this case relates to a right of what is known as 'lagan.' It is a right peculiar to religious places situated on the banks of a river. A river in India which in its course is generally as unstable as a maiden often leaves its course or overlaps the neighbouring land. Prie3ts provide for religious necessities of Hindus, sitting on the bank of the river over a certain plot of land known as 'ghat.' The proprietorship rests with certain men of substance who are nonresident and they allot this 'ghat' to Brahmins. This allotment is sometimes sold. When the front portion of the allotment is sold a situation arises that may be expected by the rising of the water and the priest carrying on his trade very close to the river finds his allotment covered by water. In such a situation he arranges for a right to occupy the back portion of the 'ghat.' At the time of purchase he makes an arrangement with the vendor who is in possession of the rest of the 'ghat' to permit him to carry on his business further back. No difficulty arises so long as the original holder of the allotment continues in possession of the. back portion of the 'ghat' because whatever the nature of the right may be, the vendor is contractually bound to accommodate the purchaser of the front portion of the 'ghat.' Trouble arises when the back portion is also sold, and the question for decision then would be whether the purchaser of the back portion would be bound to accommodate the purchaser of the front portion on the rising of the river in any case or only if he had notice of the previous contract between the purchaser of the front portion of the ghat' and the original owner. Such a dispute arises here.
3. The plaintiff Bhikhuji when washed out of his front portion claimed to carry on his business in the back portion purchased by the minor Brijmohan Das defendant and not being permitted to do so brought this suit for a declaration that he was entitled to a right of 'lagan' on the northern half of the 'ghat' during the rainy season when he is washed out of the western portion of his two 'ghats.' The defence was that the right claimed by the plaintiff was of the nature of a right enunciated in para. 2, Section 40, T. P. Act, and that the plaintiff cannot enforce it as against the defendant without proving notice of this contract to Brijmohan Das at the time the latter made his purchase. This defence was not accepted by either of the two subordinate Courts The defendant has therefore come here in second appeal. Neither Court however has considered the case in its broad outline because, as is usual with litigants other false defences were included and an attempt was made to prove that the transfer in favour of the plaintiff was fraudulent.
4. On behalf of the defence a Bench decision of this Court dated 11th July 1921 was produced. Presumably it is unreported. The learned Judges held therein that there can be no prescriptive right of 'lagan.' In that case however, as pointed out by the trial Court, no specific plot was marked out on which the right of 'lagan' may be exercised. In the present case the matter was left vague in the sale-deed itself in favour of the plaintiff, but subsequently a correction wa3 made by a second document which was also registered. The matter which was left vague in the map attached to the first sale-deed was specified accurately in the second deed. Mr. Malik argued on behalf of the plaintiff-respondent that this 'lagan' amounted to an interest in land or an easement thereon. He referred to the definition of easement in Section 4. An easement is a right which the owner or occupier of certain land possesses, as-such, for the beneficial enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. To me the right of lagan' attached to the ownership of the front part of the 'ghat' to use the back part under certain conditions appears to be a right of easement. In Section 5 it is provided that an easement may be discontinuous and non-apparent. Further, Section 8 lays down that an easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.
5. I think that the trial Court was right in pointing out that the original owner had the power to divest himself of a certain portion of his absolute right and create an easement on the back portion of the 'ghat' in favour of the person to whom the front portion was sold. A proper inquiry has not bean made in the registration office, so I am not prepared to quote in support of my argument Mr. Mallik's submission that the 'ghat' is all one 'ghat' entered as one in the registration books, and the defendant when purchasing his portion could easily have obtained notice of this right attached to the back portion under the sale-deed in favour of the plaintiff. Possibly this is true, but there is no evidence on the subject; nor have I any personal information as to how the index to registration books is prepared with respect to a 'ghat,' whether the entire ' ghat' is treated as one and a portion thereof shown in the index as sold, or the different portions entered in separate places in the index so that the purchaser of one portion may not know what has happened as regards the previous transfers of another portion.
6. In my opinion the provisions of Section 40, T. P. Act, do not apply. The appeal fails and is dismissed with costs.